Australia: Help! My ex will not let me see my children. What can I do?

A client recently expressed his family law dilemma: "She won't let me see my kids, what can I do? There are no parenting orders yet. I don't want to go to court. I just want to see my kids. I'm a parent too, but she's calling all the shots like I don't exist."

Getting separated and/or divorced is a difficult process in itself, but it becomes even more difficult when children are involved. The fallout that results from two parties separating sometimes affects how they treat each other when it comes to making and adhering to arrangements concerning their children.

Typical arrangements concerning children following separation

The common arrangement made with regard to the children when a couple separates is that they live with one party, usually the mother, and stay with the father on alternate weekends and for one half of the school holidays. The reality is that if the two parties were amicable and had a good relationship, there would never be a need to give the legal system a second glance, let alone apply for court orders.

The sad reality, though, is that there are many relationships where the split is not amicable, and the negative emotions the once loving parties now have for one another affects how they parent their children. It is a frustrating reality, but one that is not impossible to change.

Non-legal solutions – discussion, counselling and mediation

If your partner is not allowing you access to the children, below are some initial strategies you can pursue to try to rectify the situation.

  • Talk to the other party in a safe environment and express your concerns
  • Attend counselling sessions together, possibly including the children
  • See a psychologist together, aiming to resolve any unresolved emotional issues that may be causing the denial of access
  • Attend mediation together

I strongly recommend that you undertake ALL of the above-mentioned steps and perhaps even try some of them twice.

Practical limitations of the legal system

You will note that none of the above-mentioned steps involve the legal system, because ultimately, this is not an area which the law can practically resolve.

If this is surprising to you, think of it this way. The court has the power to make orders which clearly stipulate when the child is to be with which parent, and account for school holidays and special occasions like mother's day, father's day, children's birthdays and Christmas day.

The parties are given the opportunity to agree on and formalise such arrangements with the making of such orders, but if the parties cannot agree on such arrangements, then it is at the discretion of the court to make orders after reviewing each party's case.

What happens when the court's parenting orders are breached?

Let's say the court makes orders stating that the children are to live with the mother and the father is to have the children every alternate weekend, and is to pick up the children from a nearby McDonalds on the Friday at 6pm preceding his weekend.

Friday 6pm approaches and the father is waiting at the agreed McDonalds. He waits for 10 minutes and then calls the mother. She does not answer. He messages her and waits another 5 minutes and calls again. She has not responded to the text or the calls. He waits a further 15 minutes and then texts her to say he is coming over to her house to pick up the children.

She messages him to say not to come, and that the children do not want to see him. He proceeds to go to the house anyway, and she opens the door and tells him the children do not want to see him. He tells her to call out to them, but she refuses. He calls out to the children but there is no response or acknowledgement. He tells the mother that at the very least he wants to catch a glimpse of the children. She refuses.

Available options when the ex is determined to ignore court orders

What are the father's options? Could he force his way into the house to see the children? Could he continue yelling for the children and causing a scene in the neighbourhood? Neither of these options is realistic or appropriate, and both could result in a call to the police.

So what is he left to do but walk away? This example perfectly demonstrates that even with court orders in place, it does not necessarily mean that you get what you want, which is to see your children.

Next step – a contravention application

Continuing on from the above example, the father can opt to notify the court of the breaches by filing what is called a contravention application. It is worth noting that the father cannot go to the police directly unless a contravention application has been lodged with the court and subsequent orders have been made that give the police the power to intervene.

On a practical level, the father's best course of action is to keep detailed file notes of every instance when the mother has breached the court orders, including keeping careful records of the date, time, location, what was said and what happened. Such notes can then be useful as evidence in future court proceedings.

If the court finds that the breaches did in fact happen, it can take one or more of the following steps.

  • Vary the primary order
  • Order the breaching party to attend a post-separation parenting program
  • Compensate for time lost with a child as a result of the contravention
  • Require the breaching party to enter into a bond
  • Order the breaching party to pay all or some of the legal costs of the other party
  • Order the breaching party to pay compensation for reasonable expenses incurred as a result of the contravention
  • Require the breaching party to participate in community service
  • Order the breaching party to pay a fine
  • Order the breaching party to a sentence of imprisonment

Possible consequences of a contravention application

What do all of the above-mentioned possible consequences of a contravention application have in common? None of them guarantee that the father can see his children.

The most that court proceedings can do in respect of these situations is potentially scare the other party into compliance. Court proceedings cannot practically force compliance. Compliance can only truly come from both parties wanting to comply and do the right thing for the sake of their children.

If someone is not complying, your first step needs to be to try to have a conversation with the aim of resolving your dispute. If that doesn't work, then you can definitely take the matter to court, but you should weigh up the matter very carefully before taking this step.

Questions to consider before taking your ex to court

  • What do you know about your former partner in terms of their character and personality? Will going to court make them realise the seriousness of what they are doing by not allowing you to see the kids, or is it going to make them put their defences up and fight a battle that they may not have fought if you had approached the matter in a different way?
  • How will the knowledge that you are litigating against each other impact on the children?
  • How will you finance your legal fees? Trying the same non-legal solutions multiple times in the hope of them working at some point would still be more cost-effective overall than retaining a lawyer.
  • How would you feel if, after going through court and obtaining parenting orders and/or orders in response to a contravention application, you were still unable to see your children?
  • Is there anyone else you can involve in trying to resolve the matter outside of the courts? Perhaps a mutual friend whom the other party might respect and listen to?
  • Have you definitely tried everything, and have you tried it enough?

Legal process not a panacea for all ills

We often think about the law as the final, determinative solution to our personal problems. Sadly, this can be an illusion.

I am aware that the information above can be quite scary for someone who genuinely believed that if nothing else worked, then going to court would be the resolution, to find out that even that may not produce the desired result.

However, I believe it is important that you have all of the facts and know what the reality is before you make any decisions, so that you are prepared for whatever may come your way.

Zohra Ali
Divorce and separation
Stacks Champion

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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